I wasn't planning to write about privacy again this week, but just when you think the coast is clear another contentious case comes speeding along the injunction superhighway. This week the court of appeal brings us the "Shhh. Not in Front of the Children Order". Children, it turns out, can be the new passport to privacy.

Don't get me wrong. I have no objection to the decision in ETK v News Group Newspapers to stop the News of the World naming the man and woman, both married to other people, who had an affair when working together in the entertainment industry (as the judgment tantalisingly puts it). I do worry, however, about how the appeal judges got there.

The News of the World argued that there was a public interest in discussing whether the affair was the true reason "X" (not her real name) was dispensed with by her employer. The court of appeal disagreed. Although the newspaper maintained that the relationship was not confidential because the pair's co-workers knew about it, the appeal court said that was not enough to put it in the public domain. The case could have been won or lost on an examination of those facts alone, weighing, as the law requires, the right to privacy against freedom of expression, but the court of appeal decided to throw children into the balance on the side of the man seeking the injunction.

The children were "bound to be harmed by immediate publicity", said Lord Justice Ward, because it would undermine the family as a whole and "because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment". These things may be true, but was the court of appeal right to decide that the harmful effect of disclosure on children should "tip the balance" in favour of injuncting a newspaper?

Adopting this approach, the court said that the rights of children to be taken into consideration when an injunction is sought are not confined to their article 8 (privacy) rights, but include the duty of the court, under international law and various international human rights documents, to treat the bests interests of the children as paramount when making any decision concerning them. In other words, the court of appeal treated the application for an injunction as an application concerning children.

There are problems with viewing privacy through the prism of child-centred decision-making. Despite Lord Justice Ward's protestations to the contrary, this case means that children are likely to become the trump card in injunctive proceedings: if an application for an injunction is going to be treated as an application concerning children, it is difficult to see how the effect on them will not frequently (if not always) "tip the balance". More importantly, perhaps, it creates a two-tier right to a private life, which places privacy rights of people who have children above those who don't. That looks like discrimination to me.